The Hawaiian gazette., 1887-09-13

4. D.. j.
BIcKERToN j.
opinion Of The Court pei, McCULLTJ.
This was an action of ejectment to
which the defendant fled plea in
bar.
Plaintiffs claim is based upon. a.
certain land commission award, and
~ by adverse possession and right of
inheritance.
The defendants plea in bar is as
follows:
And now come the defendants in
the above entitled action, by Cecil
Brown, their Attorney, and say that
the above named plaintiff ought not
to have or maintain his aforesaid act
ion, for that heretofore, to wit, at the
October term of the Supreme Court,
held in the year 1882, the said plain
tiff, in certain action against D. Ka-
hanu. a Judgment was rendered in
favor of said ID. Kahanu, and to which
Judgment, reference is hereby speci
ally made, and made a part of this
plea.
And defendants further shew that
plaintiff should not have or maintain
his aforesaid action, for that hereto
fore, to wit, in certain action had in
the Supreme Court in equity, in an
action between plaintiff and defend
ants, Kahele ct al, judgment was rem
dered in favor of the defendants, Ia
hele c. a., on the Sth day of January,
1884. and to which judgment, refer
r, ence is hereby specially made and
made part of this plea. All of which
matters complained of, in plaintiffs
complaint herein, being for the same
cause of action as in said actions de-
cided.
Wherefore, defendants pray for
Judgment, if said plaintiff ought to
have or maintain his said action.
The general reference to the records
as made in the plea, is faulty The
plea should have set forth specifically
what is relied on in each case, but the
Court, with the records before them
viii endeavor to apply what seems to
be applicable.
The first case referred to went be-
fore the Court in Banco upon excep-
tons. Upon the exception of the
rulings of the Judge at ntsj prtuS
" that the original Royal Patent pro-
duced. conveys land described in
Award 6245, No. l, to 'Kalaeokekoi
for Kalakni, the owner Of the land in
question" the Court held that the
Royal Patent being to Kalaeokekoi
for Kalakini and the plaintiff claim
ing through Kalaeokekoi and not
through Kalakini, cannot recover
against the heirs or assigns of Kala-
kini. This adjudication directly bars
the plaintiff in the case at bar, whose
claim is through Kalaeokekoi. The
Court having also held that the equi
ties as between an award and Royal
Patent could not be determined ex-
cept in a court of equity. Counsel for
the plaintiff contend here that this
matter cannot be considered res adjH-
dicatd. because the action of ejectment
vs. d. hahanu was to recover single
piece out of several pieces awarded
and patented, which piece is not
claimed IN this action, which is
brought for others in that patent If
there were not an identity of subject
matter. the rule Of res adjudicdta would
not apply. But the circumstance that
the premises granted by the patent
comprised several detached lots, can
not make it several titles or several
things. A single grant of sundry
pieces has no different character from
the grant of a piece included in one
circumference Of survey lines. The
Court also held that Keaba, through
and succeeding whom, the plaintiff
CLAIMS a prescriptive title, having a
prescriptive occupancy, had failed to
show the beginning of definite, adj
verse and hostile claim to any part of
the premises in question, and this adj
Indicates in bar of again presenting
claim by the same so-called adverse
possession.
Thesecond case relied on in the plea
in bar, adiudicated, that the award
to Kalaeokekoi for Kalakini, was
merged in the Royal Patent to Kala-
KIM and her heirs, that the patent in
Guided the land in the award and was
a valid patent This bars the action
now based on the award.
The plea in bar is hereby sustained.
NJ Thompson attorney for plaintiff;
Cecil Brown attorney for defendants.
Honolulu, August 26.s 1887.